State v. Kapp

• Decision Date: 05 July 1916
• Docket Number: No. 19332.,19332.
• Citation: 187 S.W. 1178
• Parties: STATE v. KAPP.
• Court: Missouri Supreme Court

187 S.W. 1178

STATE v. KAPP.

No. 19332.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

George Kapp was convicted of murder, and appeals. Affirmed.

The instruction on reasonable doubt is as follows:

"The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the state. If, however, this presumption has been overcome by the evidence and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict. If, upon consideration of all the evidence, you have a reasonable doubt of the defendant's guilt, you should acquit; but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant's guilt, and not a mere possibility of his innocence."

On September 10, 1914, the assistant circuit attorney of the city of St. Louis filed in the circuit court of that city an information, charging defendant with murder in the first degree. He was duly tried and convicted, and his punishment assessed at imprisonment in the penitentiary for his natural life.

The evidence on the part of the state tends to prove the following: During an early morning hour on August 11, 1914, approximately 3 o'clock, F. W. Arney, clerk, and John Hawkins, bell boy, were in the Metropole Hotel, at High and Morgan streets in the city of St. Louis, the clerk sitting in a chair in the lobby, the bell boy asleep on a bench near the elevator. A person identified as the defendant entered and asked for a room, whereupon the clerk arose and started towards the office, which was located in one corner of the lobby. When he reached the swinging door entrance thereto, he turned and beheld two guns pointed directly towards him, and at the same time came the command: "Throw up your hands." With this he promptly complied. The clerk's money was then demanded, but he seems to have had none. He was directed to open the safe, but did not know the combination, and so proved to the robber by both the bell boy and his apparent willingness to unlock it if in his power. Without resistance the robber was given entire control of the situation, the clerk and bell boy courteously yielding to his every direction. He remained 20 or 30 minutes, and being seemingly convinced that no money was accessible, departed through the Morgan street exit. The hotel was located on High and Morgan streets, there being an entrance thereto from each of these streets. High street is east of Thirteenth and Fourteenth streets, which run north and south, while Morgan street runs east and west. Linden street also runs east and west, and is one block south of Morgan street. The hotel occupies about half of the block on Morgan street between High and Thirteenth streets. After leaving the hotel the defendant, who was followed by the bell boy, ran west to Thirteenth street, then south to Linden street, then west on Linden street to a vacant lot located about half a block west of Fourteenth street. Through this vacant lot he passed north to a point on the south side of Morgan street, which was the place where the bell boy saw him stop. The bell boy then returned to the hotel, and in the meantime police officers had been called. The bell boy, in company with one of the police officers, returned to near the point where the bell boy had last seen the robber, they going up and crossing Fourteenth street. Some person thereupon announced from a window that "he" had crossed the street and gone into the gangway. The officer, who was the deceased, crossed the street and "flashed" his light into the gangway, which was located at about 1415 Morgan. The report of a shot was thereupon immediately heard. Notwithstanding this the deceased entered the passageway and commenced shooting. The bell boy ran to Fourteenth, and then to an alley, and then to the front end of the gangway on Gay street, where he saw a man emerge from the gangway running in a stooping position and holding to a fence. The premises were not well lighted, and the bell boy was unable to identify that person. Six or seven shots were heard.

Nonie Martin (colored), who lived in the rear of 1414 Morgan street, and on the gangway about halfway between Morgan and Gay streets, testified that at the time in question she heard five shots, and soon thereafter saw a man come out of the gangway where the deceased was shot. She says that he was "stooped" and walked within a few feet of her; that the light was on, and that she could plainly see this person. She was positive that the person emerging from the gangway was the defendant.

Ella Smith, who was dead at the time of the trial, but whose testimony had been taken at a previous hearing and duly preserved, said, according to her testimony as read, that at about the time of the robbery at the hotel the defendant ran by her, and that the bell boy was following him; she saw defendant enter the second lot, and then cross the street to about the place where the shooting occurred. She did not see the shooting, but heard five shots.

Certain police officers testified that at the time they arrested the defendant he stated that on the night of the 11th of August he was at the home of his mother from 8 o'clock in the evening until 8 o'clock in the morning, being asleep during that time. He also gave his name as Edward Powers, but later admitted that his true name was George Kapp.

The officer soon died after being shot, and an examination of his body disclosed that he had been shot but once.

The defendant offered the testimony of a man and his wife and son and daughter, which was to the effect that it was raining on the night of August 11th, and that the defendant went to bed at their home at about 10 o'clock that night, and was there the next morning in his room at about 6 o'clock asleep.

Defendant testified that he remained there during the...